The first petitioner was charged in the Syariah Subordinate Court, Negeri Sembilan for an offence under s. 53(1) of the Syariah Criminal (Negeri Sembilan) Enactment 1992 ('the Enactment') for conducting a religious talk without a tauliah, while the second petitioner was charged with abetting the offence. The petitioners sought to challenge the validity and constitutionality of the said s. 53 and, having been granted leave there for, argued before the learned justices of the Federal Court herein that the section was invalid for breaching art. 74(2) and Item 1, State List, Ninth Schedule of the Federal Constitution ('the Constitution'), and secondly that since s. 53 did not fall within the realm of Item 1, the Syariah Court of Negeri Sembilan therefore had no jurisdiction to try an offence under the section. It was not in dispute that art. 74(2) read with Item 1 of the State List, Ninth Schedule of the Constitution conferred on the State Legislature the power to make laws with respect to the "creation and punishment of offences by persons professing the religion of Islam against precepts of that religion". The petitioners however contended that teaching the religion of Islam without a tauliah is not an offence against the pillars or precepts of Islam, and that the State Legislature therefore had exceeded its legislative authority when it enacted s. 53 and made it such an offence. The respondents inter alia retorted that the incident whereby the Holy Prophet (peace be upon him) had examined Muaz bin Jabal before accrediting him with the authority to teach the religion of Islam to society implied that a tauliah was indeed required before anyone could be allowed to preach the religion. It was further argued that s. 53 of the Enactment was effectually an order of the Ulil Amri (the Government), and since it was not contrary to the Al-Quran or As-Sunnah, every Muslim was bound to abide by the order. Upon the arguments thus regurgitated by the parties, it was incumbent on the learned judges to delve into the issue of whether the requirement of a tauliah for the teaching of the religion of Islam did fall within the precepts of Islam, and if so, whether the first applicant committed an offence against the precepts of Islam and attracted thereby the jurisdiction of the Syariah Court.

Held (dismissing petition with no order as to costs)

Per Arifin Zakaria CJ delivering the judgment of the court:

(1) There is a clear authority premised on the Hadith of the Holy Prophet (peace be upon him) concerning the sending of Muaz bin Jabal to Yemen that some sort of verification is necessary before a preacher is allowed to teach the religion to others. In any event, all the experts share the common view that the teaching of Islam needs to be regulated to prevent deviant teachings. The authority must first verify whether a preacher is sufficiently qualified to teach or preach a religion and this must be done before the preacher goes around preaching. Clearly, the requirement of a tauliah is just a mechanism to achieve this purpose. (para 19)

(2) The term "precepts of Islam" which covers the three main domains of aqidah, syariah and akhlak (creed, law and morality) must be accorded a wide and liberal meaning. This is in line with the authorities on the interpretation of heads or fields of the legislation as appearing in the legislative lists of the Federal Constitution. Each entry in each legislative list must therefore be given its widest significance and its scope cannot be curtailed save to the extent necessary to give effect to other legislative entries. (Sulaiman bin Takrib v. Kerajaan Negeri Terengganu (Kerajaan Malaysia, intervener) & Other Applications, foll), Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors and Other Appeals, foll) (paras 12 & 20)

(3) The requirement of a tauliah for the purpose of protecting the public interest falls within the concept of Siyasah Syari'yah. Such order or direction is made not merely to prevent deviant teachings, but also to maintain order and prevent division in the community. Clearly, no one could suggest that the requirement of a tauliah as stipulated in s. 53 of the Enactment is a maksiat (vice). On the contrary, it is necessary in this day and age for the authority to regulate the teachings or preaching of the religion in order to control, if not eliminate, deviant teachings. The integrity of the religion needs to be safeguarded at all cost. That is what s. 53 purports to do. This being the case, the contention that the Syariah Court in Negeri Sembilan does not have the jurisdiction to try an offence under s. 53 of the Enactment is devoid of any merit. (paras 26 & 27)

(4) The purpose of s. 53 of the Enactment is clear in that it seeks to protect the integrity of the aqidah, syariah and akhlak which constitutes the precepts of Islam. The requirement is necessary to ensure that only a person who is qualified to teach the religion is allowed to do so. This is a measure to stop the spread of deviant teachings among Muslims which is an offence under s. 52 of the Enactment. It is commonly accepted that deviant teachings among Muslims is an offence against the precepts of Islam. It follows that there is merit in the respondent's contention that, by necessary implication, the teaching of Islam without a tauliah could be construed as an offence against the precepts of Islam. Likewise, it follows that the State Legislative Assembly of Negeri Sembilan had acted within its legislative power in enacting s. 53 of the Enactment. (para 24)

(5) Section 53 of the Enactment is enacted pursuant to s. 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965, a federal legislation conferring criminal jurisdiction to the Syariah Courts in respect of offences against the precepts of the religion of Islam by persons professing that religion. It follows further therefore that the Syariah Court of Negeri Sembilan is conferred with the necessary jurisdiction to try such an offence. (para 28)

(6) This court is in complete agreement with the view of the Mufti of Negeri Sembilan that s. 53 of the Enactment is an order or direction made by Ulil Amri or the Government and for as long as the order or direction is not contrary to Al-Quran or As-sunnah and is not an order or direction to engage in maksiat, it is obligatory upon Muslims to abide by such order or direction. Obedience to such order or direction constitutes a precept of Islam. (para 25)